The High Court on Civil Penalties

On 9 December 2015, the High Court of Australia delivered judgment in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 unanimously allowing an appeal from the Full Court of the Federal Court of Australia judgment in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 229 FCR 331 delivered on 1 May 2015.

The principal issue in the appeal was whether the Full Court of the Federal Court of Australia erred in finding that the sentencing principles articulated in Barbaro v R (2014) 253 CLR 58 (Barbaro) also applied in civil penalty proceedings.

In Barbaro, the High Court held that in criminal sentencing proceedings, the prosecution should not make submissions relating to sentence or the range within which a sentence should fall. Therefore, if Barbaro applied to civil penalty proceedings, a practice which had become commonplace in such proceedings to make submissions as separate parties, or jointly, nominating the actual figure to be adopted for such penalties, or the range within which any penalties should fall was to be disregarded by a court.

In upholding the appeal, the High Court held that the differences between a criminal prosecution and civil penalty proceedings provide a principled basis for excluding the application of Barbaro in civil penalty proceedings.

Therefore, it is permissible in civil penalty proceedings for a court to:

* accept a penalty jointly proposed by the parties, subject to the Court being persuaded of the accuracy of the parties’ agreement as to the facts and consequences, and of the appropriateness of the penalty; and

* where proceedings are contested, to receive submissions from both parties in relation to the quantum of an appropriate penalty.